The Hague court on Monday dropped charges against former Public Service head Francis Muthaura, saying that key witnesses had either been killed, died or bribed or were too afraid to testify.
Prosecutor Fatou Bensouda told judges that she was unable to get witnesses to prove charges of crimes against humanity against Mr Muthaura.
Presiding Judge Ozaki wanted to know what the withdrawal of the charges against Mr Muthaura would mean for Mr Uhuru Kenyatta, who was charged alongside Mr Muthaura.
Mr Kenyatta was at the weekend declared winner of Monday’s presidential election.
But other cases against President-elect Uhuru Kenyatta, Deputy President-elect William Ruto and radio journalist Joshua arap Sang would proceed. She said the prosecution had new evidence against the President-elect.
She said her office had no choice but to drop the charges Mr Muthaura because most of the witnesses who would have supported the case had died, or been killed while others were too afraid to testify.
In addition, a key witness had been dropped after he recanted a crucial part of his evidence, and admitted that he had accepted bribes.
Mr Muthaura, who was in court at The Hague when the prosecution made the announcement smiled. He had maintained a studious silence throughout the proceedings.
“I wish to inform you that today I filed a notice to the judges to withdraw charges against Mr Francis Kirimi Muthaura.
‘‘I have done so after carefully considering all the evidence available to me at this time. It is my duty to proceed only when I believe that there is a reasonable prospect of conviction at trial. If not, then it is my responsibility as prosecutor to take the decision to withdraw the charges’’.
Ms Bensouda described her decision as “an exceptional” one.
“I did not take it lightly, but I believe it is the right thing to do,’’ she said.
She said her office had faced severe challenges in investigating Mr Muthaura.
The prosecutor also told the judges that Kenya had failed to provide her with important evidence and to facilitate access to critical witnesses.
In a notice to the Trial Chamber V, Ms Bensouda admitted that the evidence available “does not support the charges to the standard of proof, beyond a reasonable doubt, required at trial”.
“The prosecution, having considered the totality of all the evidence, is of the view, at this stage, that there is no reasonable prospect of a conviction in the case against Mr Muthaura at trial,” she said.
And it was Witness Number 4 who influenced the decision to drop the charges. According to Ms Bensouda, the witness had withdrawn earlier testimony that influenced pre-trial judges to confirm the case.
Ms Bensouda charged that the witness had recanted the testimony after receiving bribes from persons “holding themselves out as representatives of the accused.”
Although the office of the prosecutor said it had continued to seek more evidence against Mr Muthaura, Ms Bensouda accused Kenya of being uncooperative.
“Despite assurances of its willingness to cooperate with the court, the government of Kenya has in fact provided only limited cooperation to the prosecution,
“It has failed to assist it in uncovering evidence that would have been crucial or that may have been useful in the case against Mr Muthaura,” she told judges Ozaki, Christine Van den Wyngaert and Chile Eboe-Osuji.
However in an earlier interview with the Nation, Attorney-General Githu Muigai, the go-between between the government and the prosecutor had said assistance was “work in progress.”
“It depends on what they have requested, how soon the government ministries or department can respond to us, and then we respond to them,” he said at the time.
According to the Rome Statute (Article 61 ), the prosecutor only required to offer evidence, during confirmation of charges hearing, that could give “substantial grounds” to believe that Mr Muthaura took part in the violence.
But once the charges were confirmed, the bar for evidence was set higher. This time, the evidence had to be “beyond reasonable doubt” that Mr Muthaura was a co-perpetrator, according to Article 66 (3).
For Mr Muthaura, it would be a heavy load off his back to enjoy his retirement. But the prosecutor’s decision to drop the case also leaves holes in the case against Mr Kenyatta.
Mr Muthaura and Mr Kenyatta were accused of having been co-perpetrators “criminally responsible” for deportation, rape, murder, persecution and other inhumane acts during the post-election violence of 2008.
The Pre-Trial Chamber ruled there was insufficient evidence against another supposed co-perpetrator Hussein Ali. Maj-Gen (rtd) Ali was the police commissioner during the violence in which 1,133 people were killed and over 600,000 displaced from their homes.
Mr Henry Kosgey, who was a Cabinet minister in the Grand Coalition government also had his case dropped.
Ms Bensouda insisted that Monday’s withdrawal would affect only Mr Muthaura’s case. However, if the case against Mr Kenyatta has to proceed, it means the prosecutor would have extra work of determining who he “co-perpetrated” with.
On Monday, Judge Ozaki demanded to know why the decision to withdraw the charges had come four months after the prosecution was aware of weaknesses to proceed with it. But Ms Bensouda argued that her office had been conducting further investigations and that it had had discretion to pull out as long as they gave reasons do so.
But she said she is committed to deliver justice for the victims of the 2007-2008 post-election violence.
“The real victims of the terrible violence in Kenya five years ago are the men, the women, and the children who were killed, injured, raped or forcibly displaced from their homes - and whose voices must not be forgotten,” she said.